J. Lincoln Hallowell: The Second Amendment and gun rights

Published 6:12 pm, Friday, April 5, 2013

There seems to be little doubt that all sides to the current debate on gun rights deplore the senseless tragedy of Newtown and its predecessor massacres at the hands of mentally deranged killers. The emotional reaction is broad-based and thoroughly human.

When the tears dry up, however, political considerations are restored and the debate rages on.

Supporters of individual gun ownership claim a practically unconditional and absolute right to "keep and bear arms" as guaranteed by the Second Amendment, while the anti-gun portion of the population appear to recognize the individual's rights to gun ownership under the same Second Amendment, but that the right must be tempered by strict regulation, including registration, background checks, limits on assault weapons and limits on the capacity of magazines.

The case can certainly be made for the right of individuals to own a gun for lawful purposes, as innate to our civilization, deeply rooted in the history of mankind. The right existed well before the ratification of the Second Amendment, and the Second Amendment did nothing to limit or expand what had existed at common law.

The Second Amendment did not purport to grant the right to individual gun ownership. In plain English it granted to the several states (the "People") the right to keep and bear arms in a regulated militia. This arose out of the protracted negotiations among the federalists and those claiming the sovereignty of the individual states, and was made necessary if the states were going to ratify the Constitution. It provided a measure of protection to the states from an overbearing federal government.

For more than a century and a half there was no suggestion that the Second Amendment granted to individuals any rights that the individual did not already enjoy at common law (which, incidentally, is a broader right than one tied to membership in a militia).

In 1991, in a non-judicial pronouncement, Chief Justice Warren Burger expressed the then-prevailing view -- "The Second Amendment doesn't guarantee the right to have firearms at all." He called the individual rights view "one of the greatest pieces of fraud -- on the American public by special interest groups that I have ever seen in my lifetime."

While Justice Burger's view may well have been the prevailing one at the time, there followed a period of intense lobbying by gun advocates that finally arrived at the U.S. Supreme Court in the case of District of Columbia v. Heller, where the majority in a 5-4 decision struck down a DC regulation that prohibited the keeping of handguns in the home. In deciding the case in favor of the gun owner the court, for the first time, made it the "law of the land" that the Second Amendment does indeed guarantee the individual the right to keep and bear arms, and that the reference to the militia simply sets forth the purpose of the Amendment without in any way diminishing the plain meaning of the balance of the clause -- ... the right of the people to keep and bear arms shall not be infringed.

It is apparent that English is not the first language of the court. Its sentence restructure, with its judicial excision of a key phrase, is as tortured and convoluted as it gets. One needs to read the dissents of Justices Breyer and Stevens for a fuller appreciation of where the majority went off the track.

Fortunately, the court did stress that the right it was recognizing was not unconditional, and that it remain subject to reasonable regulation. But the damage is done. The gun lobby can now cloak itself in the American flag and pretend to be liberals pro tem, complaining that their constitutional rights are being violated when the bureaucracy insists they register their firearms and perhaps withstand a background check.

It needn't have been.

There is nothing offensive about the decision in Heller. It seems perfectly reasonable for the court to strike down a municipal ordinance that barred the keeping of firearms in one's residence, but it didn't need to hang its hat on the Second Amendment to support the decision.

The Court in McDonald v. City of Chicago, simply compounded the judicial felony by, first confirming the Court's decision in Heller, but then declaring that the Second Amendment (with its individual right to keep and bear arms) is binding on the states as well as the federal government, relying on the privileges and immunities and due process clauses of the Fourteenth Amendment.

The judicial hole is dug deeper. As originally intended by the drafters of the Second Amendment, the protected right was enforceable against the federal government, providing some measure of comfort to the states by ensuring their ability to arm their citizens in forming a "well regulated militia," and not have that right infringed by an overly aggressive federal government. Now the Second Amendment is stood on its head, with the court proclaiming, albeit belatedly, that the real import of the Second Amendment was to grant to individuals the right to keep and bear arms, and to protect those individuals from having that right infringed by the state. So, we either accept that there are, in fact, two rights (one of which was hidden from view for centuries) created by the amendment, which seem to be mutually exclusive, or there is only the one recently articulated, with the former version forever dead and buried.

It may be somewhat unfair, and at least a little arrogant, for me to be taking our Supreme Court to task on this delicate subject, but perhaps it could have made life easier for itself by either not granting certiorari in the first place, or hearing the case and deciding that the Second Amendment does not grant an individual the right to keep and bear arms. Once you find that there is no constitutional foundation for the right, then it is for the various states to regulate gun activity, as most of them have almost from the beginning.

A "one size fits all" federal approach does not and cannot accommodate every state's history, culture, criminal activity and many other regional considerations that distinguish the states from one another.

Perhaps a future court will see the light, but even if not, it is likely that the states will be given a fairly wide berth in governing gun ownership and use. Half a loaf, as it were.